WASHINGTON, D.C.—The contentious lawsuit seeking to end federal funding for embryonic stem cell (eSC) research, Sherley, et. al., v. Sebelius, et al., continues to make its way through the courts, as attorneys for those opposed to eSC research and the U.S. government argued before an appeals court.

The case, being heard by the U.S. District Court for the District of Columbia, alleges that an order signed last year by President Barack Obama which lifted a ban on federal funding for eSC research violates the Dickey-Wicker Amendment, a law that prohibits the U.S. Department of Health and Human Services (HHS) from using appropriated funds for the creation of human embryos for research purposes, or for research in which human embryos are destroyed. The suit's lead plaintiffs, adult stem cell researchers Dr. James L. Sherley, a biological engineer at Boston Biomedical Research Institute, and Dr. Theresa Deisher, research and development director at AVM Biotechnology LLC in Seattle, also argue that Obama's order has intensified competition for the limited government dollars, making it more difficult for them to get funding for their own work.

A federal appellate panel is reviewing a surprise preliminary injunction issued Aug. 2 by federal district judge Royce Lamberth that found merit in the plaintiffs' arguments and temporary brought federal funding for embryo-destructive research to a halt. The U.S. Court of Appeals temporarily suspended the injunction on Sept. 28 while the case is still pending.

In early December, Judge Thomas Griffith said the government's argument "rises or falls" on whether stem-cell research is intertwined with deriving stem cells. Plaintiffs' attorney Thomas Hunger argued that federal grants for eSC research induce the private sector to create more of the cells—"there is now an incentive for the future destruction of human embryos," he said—while U.S. Department of Justice lawyer Beth Brinkmann, representing the Obama administration, said Congress intended to make a distinction between promoting the study of eSCs and paying for their creation.

Currently, NIH guidelines allow research on cells derived from embryos that would otherwise be disposed of after in-vitro fertilization procedures.

The case is expected to play out for some time, and could wind up being heard by the U.S. Supreme Court. The Economist has noted that whatever the outcome of the case, it has cast such a shadow on eSC research in the United States that researchers abroad "will be keen to take up any slack in work using embryonic stem cells."

"In November, a group at Glasgow University implanted stem cells into the brain of a stroke victim. Israel and Singapore have ambitious plans. Even South Korea, which suspended research after a scandal in 2005, is testing the water again," The Economist points out. "Private money can fill the gap to a certain extent, as Geron and Advanced Cell Technology demonstrate. But it is unlikely to pay for fundamental research in what is still an imperfectly understood field. If the courts eventually find for the plaintiffs in Sherley v. Sebelius, and Congress does not act, the caravan of embryonic stem cell research will surely move on elsewhere."